Leaving on a high

Wednesday, 09 September, 2009, 12:00am

Frank Ching

The announcement by Chief Justice Andrew Li Kwok-nang that he will step down next August, three years before his scheduled retirement, poses a challenge in terms of a successor. But it was bound to come sooner or later, and there is no reason to think Hong Kong will not be up to it. Li had clearly given a great deal of thought to the issue of his replacement and, seeing a good many other senior judges approaching retirement age in the next few years, decided that his early retirement would be 'conducive to the ordinary succession planning in the judiciary in the coming years'.

He could easily have remained in his job until December 2012 while grooming younger men and women of whom he personally approved and who, no doubt, would be high-calibre judges. Instead, he decided to step aside.

It is a great tribute to the chief justice that the overwhelming reaction from the government, legislature and legal profession is that it will be no easy task to fill his shoes.

Actually, despite the large number of judges approaching retirement age, the situation is far from dire. Judges can be allowed to stay on beyond the age of 65, and it is conceivable that Li's successor could a contemporary rather than a younger person.

But the chief justice, for the sake of greater stability in the judiciary, was willing to accept a shorter term. That is a significant sacrifice even though, as he pointed out, he would have served for 13 years - not a short period.

His announcement was met with an outpouring of tributes from all quarters - surely a sign that he has succeeded in creating a Court of Final Appeal that is respected, while maintaining a judiciary in which the people of Hong Kong have confidence.

As a joint statement by the Hong Kong Law Society and the Bar Association declared: 'We believe that the contribution of the Chief Justice to the rule of law in the HKSAR cannot be overstated.'

His appointment in 1997, when Hong Kong ceased to be a British colony, was one of the best decisions of Tung Chee-hwa, the first chief executive.

Li's tenure was not without controversies, the biggest being the right of abode case in 1999, when the Court of Final Appeal declared that it had the authority to invalidate legislation enacted by the National People's Congress - an erroneous, though bold, claim. The NPC then made it clear that the Hong Kong court had no such power.

Subsequently, the court took the opposite tack, declaring in another right of abode case that the NPC could give final interpretations of Basic Law provisions that dealt exclusively with issues within Hong Kong's autonomy. That, too, was controversial.

These are issues that scholars, and perhaps future judges, may take up. However, in the decade since then, there has been no rocking of the boat and the court has created a solid reputation for itself. While both the executive and the legislative arms were politicised, the judiciary went about its business. Judicial decisions were not made to keep Beijing, or anyone else, happy.

And, as people looked at Hong Kong to see how it was faring under 'one country, two systems', they saw that the rule of law and independence of the judiciary had not been compromised.

Indeed, in April, the Commonwealth Law Conference was held in Hong Kong, the first time it had been hosted by a non-commonwealth jurisdiction. Li, in addressing the opening ceremony, said that convening the conference in Hong Kong 'represents a recognition of the successful implementation of the principle of 'one country, two systems'.'

He added: 'The common-law system has continued to be maintained and indeed has continued to thrive in Hong Kong in accordance with the Basic Law, our mini constitution.'

With things going so well, perhaps it was at that time that Li decided to retire early.

Frank Ching, a Hong Kong-based writer and commentator, is the author of The Li Dynasty: Hong Kong Aristocrats. His book, Ancestors: 900 Years in the Life of a Chinese Family, has just been reissued in paperback